Solutions American Leaders Speak Out on Criminal Justice

8/9/2019 Solutions American Leaders Speak Out on Criminal Justice

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at New York University School of Law

Edited by

Inimai Chettiar and Michael Waldman

Foreword by

President William J. Clinton

Authors

Joseph R. Biden, Jr.

Cory Booker

Chris Christie

Hillary Rodham Clinton

Ted Cruz

Mike HuckabeeCathy L. Lanier

Martin O’Malley

Janet Napolitano

Rand Paul

Rick Perry

Marco Rubio

Bryan Stevenson

Scott Walker

James Webb

SOLUTIONS:AMERICAN

LEADERSSPEAK OUT ONCRIMINAL

JUSTICE


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B C J N Y U S L

SOLUTIONS:

AMERICAN LEADERS SPEAK OUT

ON CRIMINAL JUSTICE

E Inimai Chettiar and Michael Waldman

A ENicole Fortier and Abigail Finkelman


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© 2015. Tis paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial”

license (see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan

Center for Justice at NYU School of Law is credited, a link to the Center’s web pages is provided,

and no charge is imposed. Te paper may not be reproduced in part or in altered form, or if a fee is

charged, without the Center’s permission. Please let the Center know if you reprint.

161 Ave. of the Americas12th FloorNew York, New York 10013

Library of Congress Cataloging-in-Publication Data

Chettiar, Inimai.

Solutions: american leaders speak out on criminal justice / Inimai Chettiar and

Michael Waldman.—2nd ed.

ISBN: 978-0-692-45921-8

Library of Congress Control Number: 201594546


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F

William J. Clinton, 42nd President of the United States v

I

S

. I C P

Joseph R. Biden, Jr., Vice President of the United States

. E O-S-F-A S

Cory Booker, Unites States Senator for New Jersey

. B B

Cornell William Brooks, President and CEO of the NAACP

. S J D

Chris Christie, Governor of New Jersey

. R L, R L

Hillary Rodham Clinton, former United States Secretary of State

. R F C G J F

ed Cruz, United States Senator for exas

. S R D P

Kamala D. Harris, Attorney General of California

. D A A C

Mike Huckabee, former Governor of Arkansas

. A R M H S

David Keene, former President of the National Rifle Association

C


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. G R Mark A.R. Kleiman, Professor at University ofCalifornia, Los Angeles

. A N W P

Cathy L. Lanier, Chief of the District of Columbia Metropolitan Police

. A S R R

Marc Levin, Founder and Policy Director of Right on Crime

. P P

Janet Napolitano, former United States Secretaryof Homeland Security

. A D P, I P S Martin O’Malley, former Governor of Maryland

. R F S

Rand Paul, United States Senator for Kentucky

. F M

Rick Perry, former Governor of exas

. A S F: R N C

Marco Rubio, United States Senator for Florida

. M, E M I

Bryan Stevenson, Executive Director of theEqual Justice Initiative

. A C C

Jeremy ravis, President of John Jay Collegeof Criminal Justice


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. G P R W Scott Walker, Governor of Wisconsin

. A N C M I

James Webb, former United States Senator for Virginia

. A N A R M I

Inimai Chettiar, Justice Program Director at the Brennan Center for Justice, New York University School of Law

E

A

A B C J


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F

Hon. William J. Clinton42nd President of the United States

In this time of increased political polarization, there is one area where we have a genuine chance at bipartisan cooperation: the

over-imprisonment of people who did not commit serious crimes.Te drop in violence and crime in America has been an extraordinarynational achievement. But plainly, our nation has too many peoplein prison and for too long — we have overshot the mark. With just5 percent of the world’s population, we now have 25 percent ofits prison population, and an emerging bipartisan consensus now

understands the need to do better.1

It has been two decades since there was sustained national

attention to criminal justice. By 1994, violent crime had tripled in30 years.2 Our communities were under assault. We acted to addressa genuine national crisis. But much has changed since then. It’s timeto take a clear-eyed look at what worked, what didn’t, and whatproduced unintended, long-lasting consequences.

So many of these laws worked well, especially those that put

more police on the streets. But too many laws were overly broadinstead of appropriately tailored. A very small number of peoplecommit a large percentage of serious crimes — and society gains when that relatively small group is behind bars. But some are inprison who shouldn’t be, others are in for too long, and without aplan to educate, train, and reintegrate them into our communities, we all suffer.

Te new approach has many roots and just as many advantages: adesire to save taxpayers money; the resolve to promote rehabilitationnot recidivism; an obligation to honor religious values; the necessityto alleviate crushing racial imbalances. All of them strengthen thispowerful new movement.

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Now it’s time to focus on solutions and ask the right questions.Can we do a better job identifying the people who present a seriousthreat to society? If we shorten prison terms, could we take thosesavings and, for example, restore the prison education programs thatpractically eliminate recidivism? How can we reduce the number ofprisoners while still keeping down crime?

As the presidential election approaches, national leaders across thepolitical spectrum should weigh in on this challenge — and in thisexciting book of essays from the Brennan Center, many of our nation’spolitical leaders step up and offer answers. Tis, in itself, is deeplyencouraging. After decades in which fear of crime was wielded as apolitical weapon, so many now understand the need to think hardand offer real reforms, which, if implemented, can bring about thischange in the right way. o address our prison problem, we need realanswers, a real strategy, real leadership — and real action. We can

show how change can happen when we work together across partisanand political divides. Tat is the great promise of America.

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L eaders across the political spectrum agree on one fact: Te Americancriminal justice system is not functioning as it should.Our nation is beginning to understand certain fundamental truths.

Mass incarceration exists. It is not needed to keep down crime. It comes ata huge cost to the country. And there are practical solutions on which wecan agree to reduce our prison population, while keeping the country safe.

One in 100 Americans is currently behind bars. Our nation’s prisonsinclude one-third of the planet’s incarcerated women. One in three blackmen will spend time behind bars. Mass incarceration is among the greatestchallenges facing our nation.1

Tese numbers are intolerable, irrational, and unsustainable. Worse,they are unjustified. Public safety is of paramount importance. Strongcommunities can only grow amid order and respect for the law. Overthe past three decades, the United States has made remarkable progress.Crime is now at the lowest levels in half a century.2 But experience hasshown conclusively that locking up ever-larger groups of people doesnot lead to fewer crimes. A large body of research has demonstrated thatincarcerating people who do not need to be punished so severely actually

increases their propensity to commit future crime. Paradoxically, lettingcertain people out of jail, or never putting them there in the first place,may be the best thing we can do to make our country safer.

We now know we can reduce crime and reduce mass incarceration.States have begun to do just that. For the first time in 40 years, both crimeand incarceration have fallen nationwide. Since 2000, a geographically andpolitically diverse group of 13 states — ranging from exas to California

to New Jersey — have successfully reduced imprisonment and crime atthe same time.3 Not only are these reforms needed from a public safety perspective,

they are needed from an economic perspective. Mass incarcerationimposes significant costs. Te national archipelago of corrections facilities

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and criminal justice agencies cost taxpayers $260 billion a year, andcorrections spending has more than quintupled over the past 30 years.Te overall economic toll is deeply troubling. Sixty percent of the 600,000prisoners who reenter society each year face long-term unemployment. Bysome estimates, mass incarceration is responsible for as much as 20 percentof the United States poverty rate.4

But the human cost may be the starkest of all: If the total number ofpeople behind bars were a state, it would be the 36th largest, bigger thanDelaware, Vermont, and Wyoming combined. Adding people on probationand parole would make it the 14th largest state.5

Te problem of mass incarceration is not new. For decades, it hasgrown in plain sight. What is new is the emerging bipartisan will to addressit. Republicans, Democrats, and Independents are co-sponsoring legislationto decrease prison sentences. Tese reforms move in the right direction, butthey are not systemic. Much more can and should be done.

Te larger apparatus of overcriminalization and over-imprisonmentremains. o truly reduce mass incarceration, we need a national conversation,led by national voices, offering national solutions. In this book, the BrennanCenter asked the country’s leading public figures and criminal justice expertsto offer practical solutions. Tey responded by writing essays putting fortha variety of proposals to tackle the problem of overincarceration fromdiffering perspectives. From helping ex-offenders reintegrate into society todecreasing the number of crimes, from treatment instead of prison for those

with mental health and drug addiction issues to increasing employmentand education, their thoughtful ideas provide a way forward. Tey sharea commitment to continued progress in the fight against crime — andcontinued progress toward a more just society.

Te 22 solutions offered here will not fix the problem on their own.It is our hope that lawmakers and stakeholders implement these ideas toproduce a system that both reduces crime and reduces mass incarceration.

Tese ideas must be turned into action. Tey must become policy, etchedinto law. Success will only come when ideas are translated into concreteresults. And a successful reform of the criminal justice system is necessaryfor the continued health of our American democracy.


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T HE IMPORTANCE OF

COMMUNITY POLICING

Hon. Joseph R. Biden, Jr.Vice President of the United States 1

“ P O I ,

. O ’

.”

Dr. Martin Luther King, Jr. stood for many things that still resonatein our country today — issues of war and peace, the rights of women overseas, the future of civil justice in this country. But here, I would like to focus on an area of Dr. King’s teachings that sits especiallyclose to home for many Americans.

I know that when you send your children, your grandchildren outinto the world, you worry about them. Will they be safe? Will they betreated fairly? Will they be respected? Can I trust the world with thisperson I love?

It’s the prayer of every parent and grandparent. When your child walks out the door you have enough fears to contend with — thepossibility that they will get into a car accident, or fall victim to an act

of crime, or be hit with a stray bullet from a drive-by shooting.But in too many neighborhoods in this country, that fear iscompounded by the fear your child may be presumed to be a gangmember, or a suspect — the fear of someone in authority looking atthat child and seeing only a profile, not an individual.

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Dr. King wrote, “Men often hate each other because they fear each other;they fear each other because they don’t know each other; they don’t knoweach other because they cannot communicate; they cannot communicatebecause they are separated.” We have to bridge the separation between thepolice and the community.2

In an interview on “Charlie Rose,” New York City Police CommissionerBill Bratton used an expression that I think should be the guiding principlefor every effort to rebuild that trust. It is an expression from the Maasaitribe. Te expression is simply, “We see you.”3

But the question is: Do we see one another? Does the danger they faceprevent the police in your neighborhood from seeing the people they serve? And does fear prevent the community from seeing and engaging with theperson behind the badge?

I served in these communities as a public defender, and for 36 yearsas Delaware’s senator. I know, and I see, the goodness and decency in

communities across the country. And I have also worked with thousandsof honorable and decent police officers, some of whom I grew up with and worked with my entire career. And at times I’ve seen reflected in their eyesthe uncertainty and fear that comes with being asked to put their lives onthe line when it’s unclear who has their back.

I had the honor of speaking at the funeral of New York City DetectiveRafael Ramos. I didn’t know him, but I knew him. He’s like the mostcourageous and compassionate guys I grew up with in Claymont, Del., the

ones who were always there to help. Rafael was an active member of hischurch, about to be ordained as a chaplain. He didn’t just keep a Bible in hislocker, he lived his ministry as part of his job, reaching out to all people. He was a former school safety officer, who joined the NYPD at age 37. He wasa father, a husband, and a son.

I was welcomed into the home of his partner, Wenjian Liu. A seven-year veteran of the force. He came to these shores from China as a 12-year-

old and spoke several dialects. He was a newlywed.Both were minorities. Both were the product of the community they livedin. Both knew the sting of stereotypes, of prejudice. Tey had families. Teyhad stories. Tey had a humanity that was denied by an assassin, who judgedthem by the color of their uniform, and not by the content of their character.


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We have to start seeing each other. We have to recognize that theblack male on the corner is also a kid who likes to draw, and maybe hasa future as an architect. We have to recognize that the cop on the beat isalso a mom who plays basketball.

It is the responsibility of every community to recognize the humanityof the men and women who volunteer to put themselves in harm’s way, toanswer the urgent call in the night, to do the best that they can. And it isthe responsibility of every officer who takes an oath to protect and serve torespect the dignity of every person that officer encounters, young or old,male or female, black, white, Hispanic, or Asian.

We need to agree as a nation on two basic statements of truth.Number one, cops have a right to make it home to their families tonight. And number two, all minorities have a right to be treated with dignityand respect. Because all life matters. And the fact that all life matters is thereason most officers became cops in the first place. And no one, no matter

what their position, what badge they wear, no one is above the law. Terecan be no notion of impunity for any individual in society, regardless oftheir position.

Tere are changes that President Obama and I believe can and shouldbe made that can help change the way police patrol their often dangerousstreets without jeopardizing the safety or security of the community, which is the whole reason to patrol the street in the first place.

One of the things we’re looking at is genuine community policing. In

some ways we’ve lost the meaning of that term. I helped institutionalizethe idea, in the 1994 Biden Crime Bill, to have community policing.4 When there’s criminal activity, the older lady living on the corner knows what’s going on but may be afraid to call the cops because she may becomethe victim if the offenders find out she called them. But if she knowsthe cop and has his name, she can call and say, “Johnny, they’re outsidemy door.” And Officer Johnny can take care of it without exposing her.

Tat’s what community policing was supposed to be about. When it started, it worked. But it’s really expensive. It takes a lotof cops. In the beginning we had adequate resources. Te 1994 BidenCrime Bill at the time was a pretty expensive operation. It put another100,000 cops on the street, and it cost $1 billion. But because crime was


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rampant, everybody signed on. And it worked. Community policingcosts a lot of money. It’s more expensive to have individuals patrollingthe neighborhood than relying on technology, or up-armored vehicles,or jump squads, which every city in America now has.

But since 1998, states, as well as the federal government, in largepart because crime dropped, have started to slash budgets. We acted likethe problem was solved. Crime was not at the top of the country’s agendaanymore. As a result, since 1998, funding for community policing hasbeen cut by 87 percent.5 Tat means fewer cops on the streets and inneighborhoods, building recognition and trust.

Te result is more separation, less communication, more hostility,and a place for crime to thrive in a neighborhood full of decent andhonorable people. Tat needs to change. A lot of other things need tochange too. Ultimately, there’s no overnight way to make that happen. Ithas to happen neighborhood by neighborhood, block by block, person

by person. And there’s nothing certain about it.In his final sermon, Dr. King said: “Somewhere we must come to

see that human progress never rolls in on the wheels of inevitability. Itcomes through the tireless efforts and the persistent work of dedicatedindividuals who are willing to be coworkers with God.”6

Trough the persistent work of so many Americans we’ve seenprogress come rolling down the tracks on a host of issues that onceseemed insurmountable. If we remember that, we’ll recognize that we

can solve this problem too. Let’s not forget who we are. Let’s not forget what we’ve done. Let’s not forget that although there’s much more to do, we have come very, very far. And we have come this far because of thespirit and hard work of the American people.


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END ONE-SIZE-FITS-A LL

SENTENCING

Hon. Cory Booker United States Senator for New Jersey

“ , . W --- . W

— — .”

W e, as a nation, work to lead the world in areas from education toinnovation; yet, we do not fully realize that the cancerous growth within our criminal justice system has made us the global leader inincarceration. Tough only 5 percent of the world’s population lives inthe United States, we are home to 25 percent of the world’s imprisoned

people. Tis is, among other things, a phenomenon driven by the drug war. In fact, there are more people incarcerated in America today for drugoffenses then all the people incarcerated in 1970.1

Some people need to be taken off the street for a long time. If youcommit a crime, and particularly a violent crime, you must pay a price.But we are not focused on locking up violent, dangerous felons — far fromit. Our prisons are filled not with violent criminals, but with nonviolent

offenders — nearly one-third of federal prisoners have little or no priorcriminal history.2

And we are all paying the financial price for these troubling trends.Using the narrowest of measures (not including police costs, courts,and more) the average American contributed $30 a year to corrections

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expenditures in 1980; that number grew to over $230 by 2012.3 Factoringin other costs, each American annually spends hundreds of dollars from hisor her tax bill to incarcerate nonviolent offenders while our expenditureson other critical aspects of our society — from infrastructure to life-savingmedical research — have declined. It costs hundreds of thousands of dollarsto incarcerate a nonviolent offender for a few years, money that could beused to hire more police officers, secure our nation from terrorist threats,or solve more serious violent crimes. Or we could spend this money toempower those who break the law — from the drug addicted to youthfuloffenders — to succeed.

Our criminal justice system is so broken that, once convicted of anonviolent crime and time has been served or punishment completed, weplace daunting obstacles in the path of people leaving prison that underminetheir ability to successfully rejoin society. Te American Bar Associationhas identified over 46,000 penalties, called collateral consequences, which

can impact people long after they complete their criminal sentence.4

Teseconsequences include roadblocks to voting and barriers to obtaining a job,business licenses, housing, education, and public benefits. Tat is why ourstate and federal prisons have become revolving doors, with two of everythree former offenders getting rearrested within three years of release.

We use solitary confinement against juveniles, a practice that somenations consider torture. It also can have profound life-altering consequenceson our youth. In fact, the majority of suicides by incarcerated youth are by

ones that have been subjected to solitary confinement.5 You may assume mass incarceration exists because people are

committing more crimes. But that is not true. Violent crime hasplunged in recent decades; the rate has declined roughly by half since1993. In fact, numerous studies have shown that incarceration ratescannot be tied to crime rates.6 Te incredibly costly reality is thatprisons in our nation continue to grow irrespective of crime rates. It

is a bureaucracy that has been expanding independent of our securityor safety. One that costs each and every one of us more and more asit systematically deprives millions of Americans and their children ofeconomic opportunity — the opportunity to contribute, succeed, andbreak cycles of poverty and hardship.


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In fact, Americans are increasingly detained in jails for simply beingtoo poor to pay a fine or from conduct stemming from mental illness,homelessness, or addiction. Instead of empowering people to succeedor treating their addictions or mental health problems, our overuse ofdetention, jail, and incarceration aggravates their problems. Being poorshould not be a crime. Incarcerating a person further undermines his orher ability to achieve economic stability because it often results in theindividual having to miss work, lose a job, or have an arrest record thatmakes the person even less employable.

Some feel the brunt of this broken system more than others. Morethan 60 percent of the prison population is comprised of racial and ethnicminorities. Tis is driven by wide disparities in arrests and incarceration.Even though blacks and Latinos engage in drug offenses at a rate nodifferent than whites, blacks are incarcerated at a rate six times greaterthan whites, and Latinos are incarcerated at nearly twice the rate of whites

for the same offenses. Te incarceration rate of Native Americans is 38percent higher than the national rate. Latinos account for 17 percent ofthe U.S. population, but 22 percent of the U.S. incarcerated population. And, blacks make up only 13 percent of the total U.S. population, but 37percent of the U.S. prison population. oday, we have more black men inprison or under state or federal supervision than were enslaved in 1850.7

Despite these realities, I have a deep and abiding faith in our nation’sability to fix our justice system. We have shown time and time again that

in the face of injustice, unfairness, and inequality we have the capacityto overcome, to reform, to change, and to grow. Correcting the problemof mass incarceration demands again a time of courage and action forour nation.

oday, I am encouraged. Across our country, people from allbackgrounds, from all parts of our political spectrum are standing up tochange this awful reality of mass incarceration. Liberals and libertarians,

Democrats and Republicans, Christian conservatives and left wingatheists, together with many others are forming unusual partnerships toroll back mandatory minimum penalties, enact bail reform, expand drugtreatment, and push for countless other reforms to our justice system. As an elected Democrat, I am encouraged to see conservative groups


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like the Heritage Foundation, Right on Crime, and the National Rifle Association joining the call for change and pushing for substantivecriminal justice reforms.

I am increasingly encouraged by the progress in our states, whichoften have been the laboratories of our democracy. So-called “red states”like exas and Georgia — which have a widely-held reputation forprioritizing law and order — have made sweeping reforms in recent yearsto reduce their prison populations.

In addition, states like New Jersey, exas, California, Virginia,Hawaii, Wyoming, Massachusetts, Kentucky, Connecticut, RhodeIsland, Colorado, New York, South Carolina, Alaska, and Georgia haveall enacted reforms and have seen drops in both their incarceration andcrime rates. Te reforms in these states prove that you do not have to lockup more people to create safer communities.

Now that we have made serious progress in many states, the question

is what can policymakers do at the federal level? Te answer: We mustthink big. We need broad-based reforms that will address all corners of thesystem — from sentencing, to incarceration, to reentry.

Since joining the Senate, I have taken steps toward introducing sensiblereforms. Sen. Rand Paul (R-Ky.) and I came together to introduce theRecord Expungement Designed to Enhance Employment (REDEEM) Act.8 It would keep more kids out of the adult system, protect their privacyso a youthful mistake does not follow them all of their lives, and help

make it less likely that low-level adult offenders reoffend. While new to theSenate, I am so grateful to join enduring champions for sensible reforms.Senators like Patrick Leahy (D-Vt.), Richard Durbin (D-Ill.), Mike Lee(R-Utah), Rob Portman (R-Ohio), Sheldon Whitehouse (D-R.I.), and John Cornyn (R-exas) have for years all pushed for legislation that wouldmake our legal system become more just.

In February, I joined with Sens. Lee, Durbin, and ed Cruz (R-exas)

to reintroduce the Smarter Sentencing Act of 2015, bipartisan legislationthat would enact meaningful sentencing reforms that would make ourfederal sentencing policy fairer, smarter, and more cost-effective.9 It wouldreduce harsh mandatory minimums for nonviolent drug offenders, whichis the single largest factor in the growth of the federal prison population.


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If we want our prison population to decrease, we must reduce mandatoryminimums. Te bill would expand the federal “safety valve,” whichreturns discretion in sentencing for nonviolent drug offenses back tofederal judges. It would allow persons convicted under the pre-2010 crackcocaine laws to receive reduced sentences, a change needed to make crackcocaine penalties more in line with powder cocaine penalties. Crack andpowder cocaine are pharmacologically the same. Te Smarter Sentencing Act would reduce these sentences and save our country $229 million overthe next 10 years.

o truly end mass incarceration, we need a comprehensive approach. We need to do away with harsh mandatory minimum penalties and theone-size-fits-all approach to sentencing. We should give judges — whoare our sentencing experts — more discretion in sentencing. We needto adopt policies that push for the early release of those least likely torecidivate. And we need to do more to ensure that people who reenter

society after serving time will contribute to society and not commitfuture crimes.

Te road ahead will pose challenges and change will not be easy. Itnever has been. But nothing is more powerful than an idea whose timehas come. We cannot afford to be deterred in this cause to end a cancerin our country that so aggressively eats away at our liberty and our justice.

We must reject the lie of cynicism that tells us that we cannot cometogether to make criminal justice reform a reality now. We must reject the

lie of contentment that tells us to be satisfied with small reforms amidstsuch giant problems. We must reject the lie of otherness that leads us tobelieve that this is someone else’s problem when we are an interdependentnation that knows “injustice anywhere is a threat to justice everywhere.”I have an unshakable faith that our nation will rise to meet, and willeventually overcome, this challenge. Let’s get to work.10


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B AN THE BOX

Cornell William Brooks President and CEO

National Association for the Advancement of Colored People

“A — — .

L “ ” . W

, A A U S

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he tragic killings of unarmed African-American men MichaelBrown and Eric Garner in 2014 are a grim reminder of ourcountry’s ineffective and unjust criminal justice system.

Racial profiling is a corrosive policing practice harming black and

brown communities at both ends of the criminal justice system. Atthe front end, racial profiling can lead to tragic and senseless deathsof unarmed black men and women, as was the unfortunate case withMichael Brown and Eric Garner. More regularly, racial profiling resultsin men and women of color being disproportionately represented in ourprisons and jails. At the back end, racial profiling takes an economictoll on communities of color, as upon release from prison, persons with

an arrest record are often disqualified from finding employment andfinancially contributing to their community.Te NAACP stands at the forefront of addressing racial profiling

and its immediate and long-term impacts, both with political actionand advocating for policy reforms — like “ban the box” legislation,

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which urges employers to remove from their hiring applications the boxapplicants with a criminal record are required to check. Our efforts aimto move our country toward establishing a fairer criminal justice systemand eliminating barriers for formerly incarcerated people to work, whichcan transform our neighborhoods and make our communities safer andeconomically stronger.

Racial profiling is neither an efficient nor corrective tool of policing.In 2011, NYPD officers stopped nearly 800,000 people for allegedsuspicious activity. Nine out of 10 were innocent, 99 percent did nothave a gun, and 9 out of 10 were black or Latino. Furthermore, in 2011,black and Latino men between 14 and 24 years old made up 42 percentof those targeted by stop-and-frisk. Tat group makes up less than 5percent of the city’s population.1

Yet, overwhelmingly, people of color continue to be racially profiled.People with dreams, hopes, and aspirations are being locked and trapped

in the bottoms of airtight cages of prisons and poverty. In 2012, there were an estimated 2.3 million people in U.S. jails and prisons — thedisproportionate majority of whom are people of color. African Americansmake up roughly 13 percent of the U.S. population, but are 37 percentof its prisoners. Some survey data suggest that more than half of formerlyincarcerated people remain unemployed up to a year after their releasefrom custody. 2 Tis means communities of color, which are overly profiledand incarcerated, are also acutely economically vulnerable.

Since its inception, the NAACP has always stood on the front linesto ensure a society free from racial discrimination. Black lives matter.Indeed all lives matter.

Most recently, the NAACP helped galvanize national andinternational attention around racial profiling and overaggressivepolicing practices, which led to the death of Michael Brown, in a 134-mile march, “Journey for Justice,” from Ferguson to Jefferson City, Mo.

Our marchers trudged up icy hills with boots often filled with bloodiedand blistered feet. For seven days, from sunup to sundown, protesters joined us as we marched through harsh weather for the cause of justice. We marched to call for reforms of police practice and culture acrossthe country. Racial epithets were thrown our way from passersby, but


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we marched. A mob shattered the window of our “support bus” aftersome threatened to shoot us, yet we continued. And after marching 134miles, we were in no way tired.

In no way was our trek from Ferguson to Jefferson City designedto be a solution. It was a continuation of the many demonstrationsdesigned to make clear to the country and the world that the NAACPand our allies will not stand down until we see systemic change in ourcriminal justice system and we bring an end to the overaggressive policingculture, particularly racial profiling, that has become commonplace incommunities of color all across the country.

Tat march is now completed, but we as a nation must continueto march forward. We march to arrive at a day when my two teenagesons and black men and women across this nation will be judged bythe content of their character, not the color of their skin. We press onto achieve a criminal justice system that holds officers accountable for

their misconduct and strengthens neighborhoods while keeping allcommunities safe.

Most of all, we march to end the plague of mass incarceration on ourcommunities. Tere are several ways the NAACP marches forward forsystemic reform in our criminal justice system. Clearly, we must advancesystemic reform and fundamental change in how policing is conductedthroughout our communities, which includes requiring police to usebody cameras, revising the equipping of police with military hardware,

promoting diversity on the force, ending the use of major force in casesinvolving minor offenses, and, of utmost importance, passing legislationthat ends racial profiling at the federal, state, and local levels.

But there is one often overlooked consequence of today’s systemof racial profiling and mass incarceration that must become a moreprominent part of the criminal justice reform conversation: theeconomic toll on communities of color. Much of this harm is caused by

a box on job applications.Te impacts of racial profiling do not end with an arrest. Long after aperson receives an arrest record, and has even repaid their debt to society,he or she can be potentially sentenced to a life of economic insecurity. With 70 million Americans with a record and 2.3 million incarcerated


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nationally, everyone knows someone with a record — from the studiousundergrad with a high school shoplifting conviction, to the respectedmiddle manager guilty of a nearly forgotten sorority prank, to countlessscores of ambitious young men arrested but never convicted under “stopand frisk” policing run amuck in our cities.3

Te NAACP has long championed reforms to improve theeconomic outcomes for former offenders, chiefly legislation to “banthe box,” which is gaining traction. “Ban the box” is aimed at urgingemployers to remove from their hiring applications the check box thatasks if applicants have a criminal record. Its purpose is to enable ex-offenders to display their qualifications in the hiring process beforehaving to disclose their criminal records.

A criminal conviction — or an arrest record — should notautomatically sentence a person to a life of unemployment orunderemployment. Legislation to “ban the box” should be implemented

in all states and at the federal level. Without such legislation, African Americans will forever be a permanent underclass in the United States andmass incarceration will continue to hold back the economic growth of ourmen and our communities.

According to Harvard sociologist Devah Pager, having a criminalrecord decreases the likelihood of a white male job applicant gettingcalled back for an interview by at least 50 percent. For black men, therate is even 40 percent worse than for white men.4 A man with a record of

incarceration will lose $100,000 of income in his prime earning years. Notsurprisingly, formerly incarcerated people lower the national employmentrate as much as 0.9 percent; male employment as much as 1.7 percent;and those of less-educated men as much as 6.9 percent. Tis joblessnesscosts at least $57 billion nationally and annually.5

One in four adult Americans with a criminal record are reminded whenever they fill out a job application that states: “Please check the box,

if you have ever been arrested or convicted of a crime.” Tis tiny box is amassive economic challenge to both job applicants and businesses.Te economic challenge starts with today’s ubiquitous digital

technology. Anyone’s criminal record is accessible to anyone anywherein the world with the click of a mouse or the swipe of a finger across


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a screen. Tese Internet records, no matter how old or inaccurate,have digital eternal life. For employers protecting business reputations, workplace safety, and staff quality, criminal record access is critical.

Once a person with a record checks the box, the employment processoften ends immediately — regardless of what the record actually says. Applications with checked boxes are often trashed unread.

Employers who blindly screen out applicants by the box hurt bothbusinesses and applicants. Te majority of people with criminal recordshave neither spent time in prison nor committed a felony or violent crime.Many are not guilty of any crime at all. Most have been arrested, but notconvicted. Moreover, of those convicted, most have only been convictedof nonviolent and often minor crimes.

Te misuse of criminal records by some employers is not only aneconomic challenge but also a moral challenge. Harvard sociologist William Julius Wilson has long written empirically, eloquently, and

sadly about what happens to poor communities when their citizensaren’t able to work. Joblessness frustrates not only the ability andambition to hold a job, but also the ability and perhaps the aspirationto raise a family responsibly.6

Imagine the possible moral consequences of employer policies thatimpede the ability of literally millions of people to compete fairly for work. Many employers, employees, and parents believe that work is notmerely economic activity but a moral exercise. Work and even the ability

to compete for work can imbue the young with discipline, ambition, anaversion to crime, and the aspiration to start a family responsibly.

Using the box to unfairly screen out qualified applicants, withminor convictions or mere arrests, not only affects them getting jobs,but also building character, forming families, and contributing to thecommunity. For example, a child who sees a parent working — or evencompeting for work — gets a moral lesson in responsibility.

“Ban the box” legislation would move the box off the applicationand postpone (but not eliminate) a criminal background inquiry. Tispractical policy has already been adopted by our nation’s largest publicemployer, the federal government; the nation’s largest private employer, Wal-Mart; and several states, including Georgia. Both Wal-Mart


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and Georgia’s adoption of the “ban the box” policy were pursuant topersistent campaigning by the NAACP and our coalition partners.7 Tispolicy will allow job applicants first to be considered and compete ontheir qualifications — then be asked about and assessed on any criminalrecord. Returning citizens who gain employment are more than one-third less likely than their counterparts to recidivate and are morecapable of turning their lives around permanently.

Now is the time to bring an end to unjust policies and policingstrategies and strive toward both individual culpability and collectiveresponsibility. Ending racial profiling and passing “ban the box”legislation would be major transformative steps in the right direction. Wecall on those we have elected to office to become our partners in the fightfor equality and fairness. Now is the time to ensure that all communitiescan live safely — safe from violence both at the hands of criminals andat the hands of police. Upon release from prison, individuals must have

the chance for employment; the chance to support themselves, theirfamilies, and their communities; and a fair chance to live economicallyproductive lives.8


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4

S AVE J AIL FOR THE D ANGEROUS

Hon. Chris Christie Governor of New Jersey

“I N J’,

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Our nation’s criminal justice system has failed us in many ways.oo often, we let violent criminals slip through the cracks whileensnaring nonviolent — and sometimes innocent — people behind bars.

For New Jersey, this situation has played out most acutely in ourbail system. Our system had allowed people who committed serious,

violent crimes, and continued to pose a clear danger to the community,to be back on the streets while awaiting trial. At the same time, we keptthose who committed minor, nonviolent offenses behind bars simplybecause they could not afford to pay a minimal bail amount. Tesepeople sat in jail for an average of 10 months while violent people, whocould afford bail, walked free, further exemplifying how dysfunctionalthe system had become.

Tere are many stunning examples of the utter failure of our bailsystem. Perhaps there is none more striking than in July 2014, whena man from Hamilton, N.J., whom police arrested earlier that samemonth, invaded the home of a local family. He had been granted bailfor a litany of charges, including multiple counts of first-degree robbery

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and had been released on bail despite his prior convictions. During therobbery, he and his accomplice pointed a gun at the family’s 8-month-old baby and threatened to put the child in the oven and turn it on iftheir demands were not met.1 Tat man should never have been releasedsimply because he could afford to post bail.

In contrast, Iquan Small was charged with a nonviolent offensethat was ultimately dismissed, yet he sat in jail for four months, lost his job, and his life opportunities — all because he could not afford bail.2 Tis is the real tragedy of a broken system that often leaves in its wakethousands of broken families created by low-income individuals, who arenonviolent, are no threat to our society, but are stuck in jail awaiting trial.Tese individuals often lose their jobs and their homes because of this.

Quite simply, the system did not work for the people it was supposedto protect. Our bail system failed two essential tests: it was not fair nor was it effective at protecting public safety. It is also fiscally irresponsible

to jail the poor and let the violent free.Some argued that this was not a crisis for our state. For me, however,

every day that someone fears for their life on our streets is a crisis. Forme, every day that someone is deprived of their liberty in a jail, simplybecause they lack the economic means, is a crisis. And I suspect that ifit were your mother or father, son or daughter, or sister or brother whofelt the graveness of that violent threat or sat unjustly in a jail cell that it would be a crisis for you, too.

Tis crisis is not unique to New Jersey. A 2007 study by the Bureauof Justice Statistics found that one-third of defendants released whileawaiting trial were charged with one or more types of misconduct whileon release. Nearly one-quarter had bench warrants for failing to appearin court. About one-sixth were arrested for a new offense, and morethan half of these new arrests were for felonies.3

How can we allow a system to exist that fails our poor, fails those

who pose no risk to our communities, and fails our citizens?I knew that we could do things differently in New Jersey. So I madea commitment to overhaul our bail system. During my State of the Stateaddress in 2012, I made a promise to a mother from Newark that we would help reduce the cycle of violence so prevalent in many of our urban


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communities. I made a promise that we would not allow the safety ofour communities and the fair treatment of nonviolent and low-incomeoffenders to continue to fall victim to politics and procrastination.

Tat’s why I proposed two common-sense reforms to refocus New Jersey’s bail system on whether a person poses a danger. Tese changesfinally allow New Jersey courts to keep dangerous criminals off the streetsand in jail until trial.

In August 2014, I signed a law that created non-monetaryalternatives allowing for the release of low-level offenders while they wait for trial.4 And in November, our citizens voted to pass a bipartisanballot initiative that I championed to amend our state constitution andallow judges to deny bail for dangerous offenders, keeping them behindbars while they wait for trial.5

Our constitution had been interpreted to require judges to setbail amounts for all offenders — even if judges thought they should

be kept behind bars because they were dangerous.6

Judges should beable to look at defendants’ criminal history, determine whether theypose a potential danger to other individuals — witnesses or innocentcitizens on the streets — and then decide whether bail makes sense.Te new amendment establishes a clear exception: When a court findsthat no amount of bail, pretrial release conditions, or combination ofthe two would assure a defendant’s appearance, protect the safety of thecommunity, or maintain the integrity of the criminal justice process, it

can deny bail and hold the defendant. Tis change will stop preventablecrimes from occurring by allowing a judge to use his or her commonsense to decide whether someone deserves to be released or not. Tis longoverdue measure will improve the quality of life in our communities bykeeping the most violent criminals off the streets and ease the minds ofcitizens around the state.7

Te companion measure was a bill to reduce our state’s reliance

on monetary bail. It created alternatives for individuals charged withnonviolent offenses. Tese alternatives include requiring that defendantsremain in the custody and under the supervision of a designated guardian,maintain employment or stay enrolled in school, report periodically toa law enforcement officer, abide by curfews, undergo drug or mental


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health treatment, or submit to electronic monitoring.8 Tese restrictions will work to ensure a defendant returns to court without committinganother crime. Tis law brings fairness to individuals who have notbeen charged with violent crimes and do not belong warehoused in jailawaiting trial because they cannot afford bail.

We also made other sensible changes to our state’s criminal justicesystem. In 2012, we expanded the mandatory drug court and treatmentprogram to more counties.9 I have a simple view on drug policy: Drugaddiction is a disease. It can happen to anyone, from any station inlife. And it can be treated. Most importantly, every life is an individualgift from God and no life is disposable. We have an obligation to helppeople reclaim their lives. And since we have the tools to help those withthis disease to save their own lives, we should use them.

We need to realize that when we keep drug addicts in jail, weensure that they will be a constant drain on our society. reatment

not only costs us less in the short run, but in the long run it producescontributing members to our society — people who are employed andpay taxes, rather than being in jail and draining taxes. Tese individuals will have the opportunity to become a good father or mother, a goodson or daughter, and contribute to the cultural fabric of our society.Requiring mandatory treatment instead of prison for nonviolent drugaddicts is only one step — but an important one. reatment is the pathto saving lives. For as long as I am governor of New Jersey, treatment

will be mandatory in our system.In 2014, I also signed legislation to “ban the box” and end

employment discrimination against people with criminal records.10 Te Opportunity to Compete Act limits employers from conductingcriminal background checks on job applicants until after a first interviewhas taken place. Tis will make a huge difference to people who havepaid their debts to society and want to start their lives over again. Tey

now have the opportunity to do that in our state.I am proud that New Jersey led by example, showing it is possible tobring about true bipartisan progress and action. We passed real criminal justice reform in New Jersey. We can now release individuals accusedof minor crimes without bail and ensure that those who pose the biggest


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risks — the severest threats to our community — are kept behind barsand off our streets.

For six years, I was the United States Attorney for New Jersey, thechief federal law enforcement officer of the state. No one can say that I am“soft on crime.” My career has been dedicated to trying to put bad peoplein prison. But we need to be smart about how we use prison.

I hope other states can build on New Jersey’s experience, ushering inbail reform to keep violent offenders off the streets and give nonviolentoffenders a chance to reclaim their lives. Tese changes will ensure thatdecisions about whether to detain someone pretrial are made based on realpublic safety threats and not on whether a defendant is rich or poor. Teyenhance the administration of justice and keep our citizens safe.

As elected officials, we are the only ones who can bring change to fixour criminal justice system. Te individuals affected by the system cannotbring that change. Neither can prosecutors nor defense attorneys. And

in some cases, not even judges can bring that change. Tese changes areserious and should be made by the people who are elected and thereforeaccountable to the people. It is our responsibility.

Elected officials across the country must act to make needed and longoverdue changes to our criminal justice system. It is good for public safety.It is good for families. And it is good for New Jersey and the country.


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toward that more perfect union of which he dreamed and for whichhe worked.

But what would Robert Kennedy say about the fact that still todaymore than 14 million children live in poverty in the richest nation onEarth? What would he say about the fact that such a large portion ofeconomic gains have gone to such a small portion of our population? And what would he say about the cruel reality that African-Americanmen are still far more likely to be stopped and searched by police,charged with crimes, and sentenced to longer prison terms? Orthat one-third of all black men face the prospect of prison duringtheir lifetimes, with devastating consequences for their families,communities, and all of us. What would he say to the thousands of Americans who marched in our streets, demanding justice for all — tothe mothers who have lost their sons?

We have to come to terms with some hard truths about race and

justice in America. Despite all the progress we have made together, theUnited States has less than 5 percent of the world’s population, yet wehave almost 25 percent of the world’s total prison population.2

We have allowed our criminal justice system to get out of balance,and I hope that the tragedies of the last year give us the opportunity tocome together as a nation to find our balance again. We can stand uptogether and say: Yes, black lives matter. Yes, the government shouldserve and protect all of our people. Yes, our country is strongest when

everyone has a fair shot at the American Dream.Inequality is not inevitable. Some of the social disparities we see

today may stem from the legacy of segregation and discrimination.But we do not have to perpetuate them, and we do not have to giveinto them. Te choices we make matter. Policies matter. Values matter.

Everyone in every community benefits when there is respectfor the law and when everyone in every community is respected by

the law. All over the country, there are creative and effective policedepartments proving that communities are safer when there is trustand respect between law enforcement and the people they serve. Teyare demonstrating that it is possible to reduce crime without relyingon unnecessary force or excessive incarceration. Tere are so many


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police officers every day inspiring trust and confidence, honorably doingtheir duty, putting themselves on the line to save lives. Tey representthe best of America.

We can learn from these examples. We can invest in what works. We can make sure that federal funds for state and local law enforcementare used to bolster best practices, rather than contribute to unnecessaryincarceration or buy weapons of war that have no place on our streets.

Of course, these are not new concerns, as I learned firsthand asa young attorney just out of law school. One of my earliest jobs forthe Children’s Defense Fund was studying the problem of juvenilesincarcerated in adult jails. As director of the University of ArkansasSchool of Law’s legal aid clinic, I advocated for prison inmates and poorfamilies. I saw how our criminal justice system can be stacked againstthose who have the least power and are the most vulnerable. Teseexperiences motivated me to work for reform, especially for juveniles, a

priority as first lady and senator. Yet, our criminal justice challenges havebecome even more complex and urgent in the years since.

oday, there is a growing bipartisan movement for common-sensereforms. I was encouraged to see changes that I supported as senatorto reduce the unjust federal sentencing disparity between crack andpowder cocaine crimes finally become law. Last year, the SentencingCommission reduced recommended prison terms for some drug crimes. And, President Obama and former Attorney General Eric Holder have

led the way with important additional steps. But there is much moreto do. Measures that I and others have championed to reform arbitrarymandatory minimum sentences, curb racial profiling, and restore votingrights for ex-offenders are long overdue.3

As a presidential candidate in 2008, I outlined proposals to reduceboth crime and the size of our prison population.4 For example, toughbut fair reforms of probation and drug diversion programs to deal

swiftly with violations, while allowing nonviolent offenders who stayclean to stay out of prison. I called for putting more officers on ourstreets, with greater emphasis on community policing to build trust while also fighting crime, as well as new support for specialized drugcourts and juvenile programs.


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Tese ideas are needed now more than ever — and they are justthe beginning. We need a true national debate about how to reduce ourcurrent prison population while keeping our communities safe. We should work together to keep more nonviolent drug offenders out of prison andto ensure that we don’t create another “incarceration generation.”

Progress will not be easy, despite the emerging bipartisan consensusfor reform. We will have to overcome deep divisions, replenish ourreservoirs of trust, and stay focused on the common humanity thatunites us all.

o move forward, we can again look back to the lessons of RobertKennedy. Being the privileged heir to a famous name never stoppedhim from finding humanity in everyone — from a single mom in Bed-Stuy, to a steel worker in Buffalo, to a student in South Africa. He hadthe gift of seeing the world through their eyes, imagining what it waslike to walk in their shoes. I was honored to follow in his footsteps in

the United States Senate, and his example was often on my mind. New Yorkers took a chance on both of us, and I will always be grateful forthat. And I followed in his footsteps again in the summer of 2012, whenI went to South Africa. One of the places I went was the Universityof Cape own to deliver a speech, just as he had decades earlier thatcontinues to inspire today.

Before that speech, I stopped in for what turned out to be my finalvisit to my friend, Nelson Mandela, at his home in his ancestral village.

We reminisced, and I thought about the extraordinary excitement ofbeing at his inauguration in 1994. It was a time of political strife in ourown country. I have to confess, my heart had been hardened by all thepartisan combat. But then at lunch, the new president of the new South Africa, President Mandela, said something that shook me from my headto my toes. He welcomed all the VIPs who came from all over the world,that he was pleased they were there, and then said this: “Te three most

important people to me here in this vast assembly are three men who were my jailers on Robben Island.”Mandela called them by name, and three middle-aged white men

stood up. He explained that despite everything that divided them, thosemen had seen him as a fellow human being. Tey treated him with


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dignity and respect. Mandela had later told me when he was finallyreleased he knew he had a choice to make — he could carry the bitternessand hatred of what had been done to him in his heart forever and he would still be imprisoned, or he could open his heart to reconciliationand become free.

Robert Kennedy said much the same thing on that terrible night in1968, when Dr. King was killed. He spoke of his own loss, and he urged Americans to reach for justice and compassion, rather than division andhatred, quoting Aeschylus on the wisdom that comes through the awfulgrace of God.

It is in this spirit of common humanity that we will be able tocome together again to restore balance to our criminal justice system,our politics, and our democracy.


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6

R EDUCE FEDERAL CRIMES AND

GIVE JUDGES FLEXIBILITY

Hon. ed Cruz United States Senator for exas

“ :,

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,

, .”

he criminal law is the most potent “lever through whichgovernment brings power to bear on the individual citizen.”1 Not

only can a criminal conviction lead to imprisonment and the loss ofother rights, including the right to vote, it forever brands those whoare convicted as criminals — a stigma that can be difficult, if notimpossible, to overcome. Because of these serious consequences, thepower to define crimes and to prosecute and jail people for committingthem must be exercised with utmost care. Unfortunately, for all itsvirtues, the criminal justice system does not always exercise the care

that it should.Tis essay focuses on three vital areas of concern: overcriminalization,harsh mandatory minimum sentences, and the demise of jury trials.Tese problems pervade our criminal justice system at large, butthere are practical ways to address them at the federal level. Congress

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should pass laws that would eliminate redundant crimes and convertregulatory crimes into civil offenses, take steps to give judges moresentencing flexibility, and require prosecutors to disclose materialexculpatory evidence during plea negotiations.

Te first problem is the proliferation of federal crimes, what is oftentermed overcriminalization. Since the late 19th century, the numberof federal offenses has risen steadily, accelerating during the New Dealand virtually exploding since the 1970s. Te last time a rigorous effort was undertaken to tally the number was over 30 years ago in 1982.Te task took two years and produced, at best, an educated estimateof approximately 3,000 federal criminal offenses. No one really knows what the real number is today. We do know, however, that Congresscreated more than 450 new crimes from 2000 to 2007, a rate of morethan one a week. Assuming a one-a-week rate over the last 32 years,the number of federal criminal offenses would now exceed 4,600. But

even that does not capture the full scope of our overcriminalizationepidemic because many federal regulations carry criminal penalties.If those regulations are included in the tally, then the total number offederal offenses could reach a staggering 300,000.2

Congress and the president should work together — perhapsthrough a commission — to scrub the entire United States Code,eliminating crimes that are redundant and converting regulatorycrimes into civil offenses. But the political incentives to criminalize

disfavored conduct — whether it is inherently evil or not — couldprove too great to generate the support needed to undertake thisHerculean task.

Te place to start is with incremental reforms aimed at mitigatingthe harmful effects of overcriminalization. Congress should beginby requiring that all criminal offenses are put into one title of theCode, itle 18, or if that proves too difficult, Congress can enact a law

that prohibits criminal liability on the basis of any statute that is notcodified or otherwise cross-referenced in itle 18.3 Having thousandsof criminal laws scattered throughout the entire Code works anintolerable hardship on the public akin to Caligula posting his lawshigh up to make them difficult for the public to see.


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o ameliorate the effect of redundant or overlapping criminallaws, Congress should also pass legislation requiring courts to presumethat a single criminal act or transaction should be treated as onecrime subject to one punishment, even if the act or transaction ispunishable under multiple statutes. And to mitigate the consequencesof criminalizing regulatory offenses, Congress should repeal criminalpenalties for violations of agency regulations. At the very least, itshould require that any new regulations carrying criminal penalties beapproved by Congress and the president. Perhaps most importantly,Congress should enact legislation that requires the government toprove the defendant knowingly violated the law — or that, at least,allows a mistake of law defense — for certain classes of crimes thathave no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the governmenthas criminalized non-blameworthy conduct for regulatory purposes,

ignorance of the law should be a valid defense to criminal liability.Te second problem is the ratcheting up of mandatory minimum

sentences over the last several decades. Although there is nothing wrong in principle with mandatory minimums, they must be carefullycalibrated to ensure that no circumstances could justify a lessersentence for the crime charged. Te current draconian mandatoryminimum sentences sometimes result in sentencing outcomes thatneither fit the crime nor the perpetrator’s unique circumstances. Tis

is especially true for nonviolent drug offenders.Harsh mandatory minimum sentences for nonviolent drug crimes

have contributed to prison overpopulation and are both unfair andineffective relative to the public expense and human costs of years-longincarceration. According to a 2012 Government Accountability Officereport, the inmate population in the federal Bureau of Prisons (BOP)increased by more than 400 percent since the late 1980s because of

lengthening sentences. Te number of drug offenders in federal andstate prisons increased 13-fold during that time period. As of February2015, nearly half — 49 percent — of BOP inmates were sentenced fordrug crimes. Tis has contributed to overcrowding. BOP prisons nowhouse 39 percent more inmates than their capacity.4 It is far from clear


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whether this dramatic increase in incarceration for drug crimes hashad enough of an effect on property and violent crime rates to justifythe human toll of more incarceration.

Given the undeniable costs and dubious benefits of mass, long-term incarceration of nonviolent drug offenders, Congress shouldtake steps to give judges more flexibility in sentencing those offenders.Te Smarter Sentencing Act of 2015, which was introduced by Sens.Mike Lee (R-Utah) and Dick Durbin (D-Ill.), and of which I am anoriginal cosponsor, is a significant stride in that direction.5 Amongother things, the bill lowers minimum sentences, cutting them inhalf, to give judges more flexibility in determining the appropriatesentence based on the unique facts and circumstances of each case.

Te third problem, which is exacerbated by the first two, is thedemise of jury trials. Plea bargaining has become the norm in ourcriminal justice system, while the constitutional right to a jury trial —

which the Founders understood to be a bulwark against tyranny — isnow rarely exercised. Contrary to popular perceptions, we no longerhave a system where a jury determines a defendant’s guilt or innocencein a public trial. In 2013, 97 percent of all federal criminal chargesthat were not dismissed were resolved through plea bargains; less than3 percent went to trial.6

In this plea-bargaining system, prosecutors have extraordinarypower, nudging both judges and juries out of the truth-seeking process.

Te prosecutor is now the proverbial judge, jury, and executionerin the mine-run of cases. Often armed with an extensive menu ofcrimes, each with their own sentencing ranges, federal prosecutors can wield their discretionary charging power to great effect by threateningthe most serious charges that theoretically (if not realistically) canbe proved. If the accused succumbs to the threat and pleads guilty, which often happens, the prosecutor agrees to bring lesser or entirely

different charges that carry a lower sentencing range.Given the risks involved in turning down a plea offer, it is notunheard of for people to plead guilty to crimes they never committed.Of the 1,428 legally acknowledged exonerations recorded by theNational Registry of Exonerations since 1989, 151 (or roughly 10


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percent) involved false guilty pleas. It is estimated that between 2 and8 percent of convicted felons who have pleaded guilty are actuallyinnocent.7 In a federal prison population of 218,000 — the numberat the end of fiscal year 2011 — where 97 percent pleaded guilty,that means that anywhere from 4,229 to 16,916 people could beimprisoned for crimes they did not commit.

Te plea-bargaining system is premised on the assumption thatthere is relatively equal bargaining power between the accused and thestate. Nothing, of course, could be further from the truth. Mitigating thecoercive effect of the plea-bargaining process will require empoweringthe defense. And one way to do that is to reduce the informationalasymmetry between prosecutors and defense counsel. Plea offers areoften foisted upon the accused before the defense has had enough timeto investigate the facts, and the longer the investigation takes, the lessgenerous the plea offer may become. Congress should pass legislation

that requires the government — whether constitutionally required ornot — to disclose material exculpatory evidence before the accusedenters into any plea agreement. Tis reform will reduce the risk offalse guilty pleas by helping ensure that the accused is better informedbefore sealing his or her fate.

Not all criminal justice reforms benefit criminal defendants. I,for instance, strongly supported Sen. Kirsten Gillibrand’s (D-N.Y.)Military Justice Improvement Act, which would have transferred

charging authority for many non-military-related crimes, includingsexual assault, from unit commanders to independent militaryprosecutors — a change that may well make it more likely for chargesto be brought against defendants.8 Such a reform will better servethe interests of justice. Likewise, the reforms discussed in this essay would serve the interests of justice by giving much-needed protectionto individuals — many of whom are poor or minorities — who find

themselves in the crosshairs of federal prosecutors.


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7

SHUT THE R EVOLVING DOOR OF PRISON

Hon. Kamala D. Harris Attorney General of California

“S - ,

C’ B , - -- .P ,

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A merica is a global leader on many fronts, including our recordincarceration rate. Over the last 40 years, the country’s prisonpopulation has grown 500 percent. We now house more than one-fifth of the world’s incarcerated population. In California, the prison

population grew three times faster than the general populationbetween 1990 and 2005.1 With severe overcrowding in the state’sprisons and increased scrutiny on the effectiveness of incarcerationin enhancing public safety, California has had to develop innovativepolicies to hold criminals accountable and stop prison’s revolvingdoor.

For several decades, tough laws and long sentences have created

the illusion that public safety is best served when we treat alloffenders the same way: arrest, convict, incarcerate, and hope theysomehow learn their lesson. As a career prosecutor, I firmly believethere must be swift and certain consequences for crimes, and thatcertain offenses call for nothing less than long-term imprisonment.

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But we also know that the majority of prisoners are serving time fornonviolent offenses — what I call the base of the “crime pyramid.” At the top of the pyramid are the most serious and violent crimes, which are committed far less often but should demand most of ourattention in law enforcement. At the base of the pyramid are thevast majority of crimes committed, which are nonviolent and non-serious. Yet the manner in which our system deals with low-leveloffenders wastes precious resources needed to fight more seriouscrime and truly enhance public safety.

Crime is not a monolith. Instead of a one-size-fits-all justicesystem that responds to all crime as equal, we need a “Smart on Crime”approach — one that applies innovative, data-driven methods to makeour system more efficient and effective. Being smart on crime meansthat we focus on the top of the pyramid and avoid treating all offendersthe same way. Tis approach has three pillars: maintain a relentless

focus on reducing violence and prosecuting violent criminals, identifykey points in the lives of young offenders to stop the escalation ofcriminal behavior, and support victims of crime.

Te issue of mass incarceration was brought into sharp focusfor California when the U.S. Supreme Court issued its 2011Brown v. Plata decision, requiring the state to reduce its prisonpopulation by approximately 46,000 inmates due to overcrowding.2 Tis ruling forced California’s leaders to confront how our state

approached incarceration, particularly when more than 90 percentof prisoners return to their communities and are unprepared tobe productive members of society.3 In response to this ruling, theCalifornia legislature passed the Criminal Justice Realignment Actof 2011 (“Realignment”). Realignment shifted responsibility forthe incarceration and supervision of low-level, nonviolent offendersfrom state prisons to California’s 58 counties. It also funded counties

to handle their increased responsibilities and create alternatives toincarceration and successful reentry.4

Since then, Realignment has achieved one of its primarypurposes: to significantly reduce California’s prison population.California has reduced its state prison population by 30,000 and also


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shifted the supervision of 50,000 offenders from state parole agenciesto county probation departments. Further, Realignment has allowedus to increase our return on investment, so that dollars we spend oncriminal justice better equip inmates with the tools and skills theyneed to ensure they do not reoffend. Tis is particularly importantbecause incarceration in California is expensive. Statewide, we spendan estimated $13 billion per year on prisons, yet nearly two-thirdsof all state prisoners go on to reoffend within three years of release.Tese high rates of recidivism are not only a waste of taxpayer dollars,they are a serious threat to California’s public safety.5

Tere has been a movement to change these trends, to adopt thesmart on crime approach, and build evidence of its effectiveness forsome time. In 2005, as district attorney of San Francisco, I put thisstrategy to the test when we created “Back on rack,” a comprehensivereentry initiative for first-time, nonviolent drug offenders. Te

initiative focused on personal responsibility by holding offendersaccountable for their behavior. In exchange, participants engaged inintensive reentry, life skills training, and education and employmentopportunities to reduce the alarmingly high chance that they wouldresume a life of crime upon their release.6

Back on rack worked. Te re-offense rate for participants was10 percent, compared to 54 percent for non-participants who hadcommitted the same types of crime. axpayer savings were significant.

Te program cost less than $5,000 per person, compared to the$43,000 it cost to house an offender in jail for one year. Back onrack yielded a substantial return on investment for the city and forCalifornia. Not only did we save taxpayer dollars for each successfulparticipant who did not return to jail, the effort also grew the locallabor force, expanded the tax base, and had a number of collateralbenefits (e.g., higher child support payments). We were honored that

the U.S. Department of Justice designated Back on rack as a modelfor law enforcement.7

Building on this success, I created the Division of RecidivismReduction and Reentry (“DR3”) of the California Departmentof Justice in November 2013. DR3 aims to reduce recidivism by


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partnering with counties and district attorneys. DR3 identifieseffective evidence-based best practices, measures their success inreducing recidivism and facilitating successful reentry, and identifiespublic and private funding sources to support those initiatives.8

In February 2015, we launched “Back on rack-LA.”9 Tisholistic reentry initiative targets nonviolent offenders in the Los Angeles County jail system to prepare them to reenter society ascontributing and law-abiding members. Using evidence-basedpractices, the initiative combines in-custody education with thecritical services for a seamless transition to out-of-custody life. Tein-custody program provides cognitive behavioral therapy, academicand career-technical education, life skills, and reentry training. Italso provides child support services, parenting and family services,identification cards, health services, and tattoo removal. Troughpartner schools, “Back on rack-LA” offers remedial and college

courses, as well as certification courses in welding, construction, andother careers that match California’s workforce needs.

After release from jail, the out-of-custody program providesemployment, housing, and continuing education services. AnEmployment Advisory Board assists participants with job placementand the LA County Probation Department provides transitionalhousing for participants for up to 120 days and coaches whocontinue to monitor and assist participants for one year after release.

Participants can continue toward completing high school studies,and transfer their college credits earned while in-custody to anyCalifornia community college.

A foundational component of Back on rack -LA is personalaccountability. Participants create individual responsibility plansand are guided by coaches who will hold them accountable tobenchmarks. Participants make the transition from lives of crime to

become productive members of society, benefitting not only theircommunities and families, but also California taxpayers.Back on rack is proof that we can be smarter in reducing crime

than simply perpetuating the pricey revolving door to prison. Atthe federal, state, and local levels, we need to explore how to best


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scale and replicate proven approaches. We should continue buildingpartnerships across agencies, such as sheriff’s departments, probationdepartments, community colleges, and other public and privatesector entities to pool their expertise and resources toward the goalsof stopping recidivism and preventing crime.

Being smart on crime also means using the best and mostinnovative tools available to increase the effectiveness of lawenforcement and criminal justice. Using state-of-the-art technology,California tracks program outcomes such as recidivism, educationalattainment, employment, and child support payments. For example, we have collected data points on each of Back on rack-LA’s programelements. Trough data collection, we are setting a new standard for what “success” means in recidivism-reduction programs.

Recidivism reduction is a long-term commitment, and ourprograms must equally reflect that commitment. And we must

measure progress toward those goals. o facilitate these reforms, lastOctober I proposed a single statewide definition of recidivism, whichrepresents a data-driven approach to evaluate recidivism rates andmeasure the effectiveness of criminal justice policies and programs.10 California and many other states lack a uniform way to measurethe rate of individuals who recidivate. One shared definition ofrecidivism is critical if we are to be smart on crime.

Our country has an opportunity to adopt a modern, cost-

effective crime-fighting agenda that delivers the safety we deserve.States can deliver accountability and achieve cost-effectiveness byimplementing reentry programs, such as California’s Back on rack,to ensure that offenders successfully transition from in-custody toout-of-custody life and stop committing crimes. Providing theseservices reduces recidivism, saves money, and prevents crime. Ithelps redirect nonviolent offenders from a life of repeated crime and

prison time to get their lives back on track.In recent years, public opinion on criminal justice policy haschanged. Te message has been clear: We cannot continue to dobusiness as usual, then act surprised when individuals reoffend. Weare at a seminal moment for criminal justice policy — not just in


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California, but across the nation. We can no longer afford to ignoreour incarceration problem — the financial and societal costs forvictims, communities, and taxpayers are too high. Te smart oncrime approach can shut the revolving door between prisons and ourcommunities for good.11


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8

T REAT DRUG A DDICTION AND

A DDRESS CHARACTER

Hon. Mike Huckabee Former Governor of Arkansas

“W - . —

, , , —

. M , ,

.”

Ibelieve in law-and-order. I also believe in using facts, rather than fear, when creating policy. And, I believe in fiscal responsibility. Rightnow, our criminal justice system is failing us in all three camps.

Te government’s most fundamental responsibility is to protect thepublic with basic law and order. As a governor, I know firsthand theimportance of delivering justice, especially for the worst crimes in oursociety. I authorized 16 executions, more than any other governor inmy state’s history. It was my duty and I took it seriously because each was the only decision I had made that was absolutely irrevocable. Ihave no tolerance for those who victimize and terrorize the innocent

through crime. Ending someone’s life or separating someone from theirfamily for 30 years is not a trivial decision — it requires caution, care,and prayerful wisdom.

However, my up-close-and-personal view has also taught methat all judicial sentencing requires close deliberation. Many of the

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cases that come before courtrooms are full of human emotion. Tesedecisions impact real lives. Leaders in our country have a responsibilityto evaluate sentencing policies to ensure justice. We must also take intoaccount the broader impact these policies have on society. When itcomes to criminals who will eventually be released and return to society, Americans simply cannot afford a system that is based solely on revenge.

We need to re-examine our incarceration objectives. We must makethese decisions with an eye toward rationality. Te ultimate purposeof the system — beyond establishing guilt, assigning responsibility,delivering justice, and extending punishment — is to correct thebehavior that led to the crime. Major first steps include treating drugaddicts, eliminating waste, and addressing the character of our citizensand children.

An Arkansas prison official once told me that 88 percent ofincarcerated inmates at his prison were there because of a drug or

alcohol problem or because they committed a crime in order toget drunk or high. As he astutely observed, we do not have a crimeproblem, we have a drug and alcohol problem. While those who dealdrugs and entice others into enslaving addictions deserve serious timeand tough sentences, we lock up many nonviolent drug users, someof whom spend longer periods in prison than they would if they hadcommitted a violent crime. Tough many of the efforts to address thisproblem have brought some measure of sanity to the process — drug

treatment as opposed to merely warehousing drug users — we need todo things differently.

We have far too many bureaucratic protocols and sentencingmandates that create career criminals. Tis doesn’t make our streets safer— it just makes our government more expensive. We need common-sense reforms, especially with sentencing. As my corrections directoroften said, “We need to quit locking up all the people that we are mad

at and lock up the people that truly deserve it.” Sexual predators, violentoffenders, and dangerous criminals need to be locked up, but we mustprovide treatment options and real rehabilitation to those who struggle with drug abuse and addiction. Trowing them in prison with a longsentence is a costly, short-sighted, irresponsible response.


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Drug courts provide one example of tried and true reform. Withdrug courts, a nonviolent drug offender can be directed to enroll indrug trea

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Solutions American Leaders Speak Out on Criminal Justice